A family law case is before the Florida Supreme Court right now that is quite interesting. The court must decide a dispute between a child’s legal father and her biological father.

You see, in Florida, when a child is born of a marriage, the legal father is the man married to the mother. The legal father, therefore, may not be the biological father. Thus, the biological father may not have any rights to the child.

This presumption of legitimacy is based on the public policy of protecting the welfare of the child. Prior to DNA testing, there was no scientific way of knowing biologically who the father was. It was presumed that the husband was the father. This presumption protected the welfare of the child. In cases of divorce, the child had protections of child support and health care. The law has not kept up with the science.

As the law is currently, a legal father who is not a biological father would have to agree to release his rights and there would have to be a dissolution of marriage for a biological father to begin the process to become the legal father. If the legal father is not willing to disestablish his rights, a paternity action would ensue. If the legal father and mother wish to remain married, then the biological father cannot become the legal father.

This very issue is what the current case before the Florida Supreme Court is about. The biological father is asking the court to grant him shared custody and parenting rights with the legal father and mother, as they remain a married couple.

Ultimately, the Florida legislature, as well as all state legislatures, are going to have to modernize the law to keep up with scientific developments.